Immigration Compliance and Form I-9 Changes — ICE Expands Scope of Substantive Violations

At a Glance

• These developments affect all US employers, not just those that employ foreign nationals.
• Employers who have relied on document retention as a "cure" for missing or incomplete information in the form are no longer able to do so.
• Employers who have not conducted internal Form I-9 audits, retrained their HR teams with the latest changes in Form I-9 rules, or focused on which employees need Form I-9 reverification should do so with urgency.

US Immigration and Customs Enforcement (ICE) has updated its guidance on Form I-9 compliance, materially expanding what constitutes a "substantive" violation in a significant departure from two decades of prior internal ICE enforcement policies. Errors that were historically treated as technical and correctable without a penalty could now trigger immediate fines.

Background

The Immigration Reform and Control Act of 1986 (IRCA) requires employers to verify the identity and employment authorization of all employees by completing and retaining Form I-9. The Forms I-9 must be retained for prescribed periods and produced upon request in the event of an inspection. Historically, ICE distinguished between:

• Technical violations, which employers could correct within 10 business days
• Substantive violations, which could lead to $2,861 in civil fine penalties per Form I-9

What Has Changed?

On March 16, 2026, ICE published Form I-9 Inspection under Immigration and Nationality Act § 274A — a factsheet in which ICE updated the list of what qualifies as a technical or substantive violation. In doing so, ICE broadened the category of substantive errors and, as a result, several errors previously treated as technical and correctable within 10 business days could now be immediately sanctionable.

Errors Now Treated as Substantive

Section 1

• Failure to complete the Alien Registration Number / US Citizenship and Immigration Services (USCIS) Number field where required — Previously, if the employer retained a copy of a document showing this number or if the number appeared elsewhere on the Form I-9, this was treated as a technical error.
• Failure to complete the employment authorization expiration date field for aliens authorized to work in the United States until a specified date, even when the expiration date is provided in Section 2 or appears on the copy of the underlying document retained by the employer.
• Missing the date of birth.

Section 2

• Missing the name and title of the employer or authorized representative.
• Missing the date of hire in the attestation portion.
• Incomplete document information — Missing the document title, issuing authority, document number(s), and/or expiration date are now substantive violations, even where a copy of the underlying document is retained.

Supplement A

• If using a preparer/translator, failure to provide their complete name, address, signature, and date at the time of completion of the Form I-9.

Other Errors Now Treated as Substantive

• Failure to mark the “alternative procedure” box in Supplement B when using the alternative procedure to examine identity and work authorization documents remotely.
• Improper use of the alternative procedure to remotely examine documents when the employer is neither an active E-Verify participant nor registered in a DHS Non-E-Verify Remote Document Examination Form I-9 program.
• Use of the Spanish language Form I-9 outside Puerto Rico.
• Failure to meet the standards for the electronic completion, retention, documentation, security, reproduction, and electronic signatures.

What Does This Mean for Employers?

• These developments affect all US employers, not just those that employ foreign nationals. Form I-9 compliance is mandatory for all US employees hired after November 6, 1986.
• Employers who have relied on document retention as a "cure" for missing or incomplete information in the form are no longer able to do so.
• Employers' legacy Forms I-9 that contained previously fixable technical errors pose a risk. These should be audited to identify errors that may now be considered substantive.

In Conclusion

Given the increased attention on immigration compliance by ICE and other federal agencies, the expanded redefinition of substantive errors will result in increased civil fines when ICE conducts audits of Forms I-9. For large organizations, small, repeated errors can compound and scale into significant increased exposure. Employers who have not conducted internal Form I-9 audits, retrained their HR teams with the latest changes in Form I-9 rules, or focused on which employees need Form I-9 reverification, should do so with urgency.